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TMI Blog2021 (11) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... engal Electricity Regulatory Commission (for short hereinafter referred to only as the Commission), of the Tariff Order of the Commission dated the 31st of May 2021? If the answer to the aforesaid question is in the negative, both R3 and R4 are within their rights to proceed with the application filed by R4 under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short hereinafter referred to only as the IBC) before the National Company Law Tribunal, Kolkata (NCLT, Kolkata). If the answer to the question is in the affirmative, then this Court, in exercise of its appellate jurisdiction under Article 226 of the Constitution of India, can issue directions consistent with an efficacious effort at resolution of the disputes, failing which the proceedings under the IBC shall continue. Before tackling the above referred question, it will be standard protocol to refer to the essential aspects of the dispute. First, the Appellant No.1/ the Company is a thermal power generating enterprise which is in charge of operating two 150 MW. coal based thermal power plants at Haldia in the State of West Bengal. The proposed third power generating unit of the Appellant No.1/ the Company is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess) Regulation, 2013 (the 2013 Regulations). The Review has been filed on 11th of June 2021 and is pending adjudication by the Commission. It is the grievance of the Appellant No. 1/ the Company that without waiting for a final outcome in the Review, R3 and R4 have directly proceeded, behind the back of the Appellant No.1/ the Company, before the NCLT invoking the provisions of the IBC. Mr. Mookherjee, Learned Senior Counsel appearing for the Appellant No.1/ the Company, submits that such unilateral invocation of the IBC in the teeth of the restructuring proposal being worked out with R3 and R4 is amenable to be corrected in exercise of the Writ Jurisdiction of this Court. It is pointed out that the nature of business of the Appellant No. 1/ the Company pertaining to supply of electricity to common consumers through an agency of State namely, the West Bengal State Electricity Distribution Company Limited (WBSEDCL), carries with it a public law element read with the nature of the restructuring exercise under the aegis of the said RBI Framework of 2019. In such a scenario, the Court sitting in Writ Jurisdiction is qualified to decide on the propriety of the unilateral action under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the domain of R3 and R4 acting as lenders to wait any further beyond the Tariff Order pronounced by the Commission. It is evident that the restructuring exercise arrived at the said Consortium Meeting dated 17th of February, 2021 has not worked out. It is not the domain of the Writ Court to explore whether, following the collapse of the restructuring exercise, R3 and R4 could be prodded to extend further concessions in favour of the Appellant No. 1/ the Company. It is submitted that R3 and R4 have faithfully discharged their obligations qua the restructuring exercise coterminous with the pronunciation of the Tariff Order by the Commission on 31st of May, 2021. The prejudice claimed by the Appellant No.1/ the Company qua the Tariff Order, does not bind R3 and R4 who, as Corporate Creditors, are free to proceed to realise their debts. With the non-acceptance of the Tariff Order by the Appellant No.1/the Company, the restructuring exercise triggered by the said Consortium Meeting collapsed freeing the parties of their reciprocal obligations. R3 and R4 are within their rights to claim their debts by invoking the IBC. It is submitted on the strength of In Re: A. Naveen Chandra Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtium Meeting stops with the pronouncement of any Tariff Order or, included within its ambit a viable Tariff Order. F) Even a plain look at the Review Application filed by the Appellant No.1/the Company before the Commission pointing out to the arithmetical omissions in the Tariff Order dated 31st May, 2021, prima facie do not carry the impression of a cosmetic exercise. G) Although, it is completely upon the Commission to decide whether the Grounds taken in the Review Application point to errors on the face of the records, settling a Tariff is undoubtedly an arithmetical exercise. It would be therefore entirely for experts to prove, disprove and, ultimately decide, the correctness or otherwise of the fundamentals connected thereto. H) The question hardly begs an answer that a non-viable tariff is no tariff at all. Equally, Corporate Creditors cannot wait ad infinitum for the tariff adjudicatory process to be exhausted and their debts dry up. Needless to emphasise, in all this, the Commission must get its act together since shoddy arithmetic fetches zero numbers. I) At the same time, the action of R3 and R4 in proceeding straightaway invoking the IBC requires to be position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case, AIR 1963 SC 1909, that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter." M) Therefore, the Tariff Order dated 31st May, 2021 being fundamental to both the Corporate Debtor and the Corporate Creditor, its failure necessitated that the parties re-visit their positions or, at least brief each other of their respective positions, prior to embarking upon exercising their respective legal options. It would be thu ..... 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